Information Note on the Court’s case-law No. 100
August-September 2007
Sud Fondi srl and Others v. Italy (dec.) - 75909/01
Decision 30.8.2007 [Section II]
Article 7
Article 7-1
Nulla poena sine lege
Confiscation of land and buildings by a criminal court – despite the owners’ acquittal – on the grounds of unlawful construction in a coastal area: article 7 applicable; admissible
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Deprivation of property
Confiscation of land and buildings by a criminal court – despite the owners’ acquittal – on the grounds of unlawful construction in a coastal area: admissible
The applicant companies owned plots of land by the sea, on which they constructed buildings after obtaining permission from the municipal authorities. The public prosecutor’s office, after finding that the buildings had been constructed illegally since the site was in a conservation area, ordered their preventive seizure. On an appeal from the applicants, however, the Court of Cassation quashed the measure and ordered that the buildings be returned to the owners, as the development plan for the area did not feature any prohibition on building on the site. Meanwhile, the public prosecutor’s office entered the representatives of the applicant companies in the register of persons against whom a criminal prosecution had been brought. The criminal proceedings ended with a judgment of the Court of Cassation which upheld the illegal nature of the building schemes and the building permits issued. The court pointed out that there was an absolute prohibition on building on the land in question, which was subject to statutory landscape requirements. The accused were acquitted on the ground that no wrong or criminal intent could be attributed to them and that they had committed an “unavoidable and excusable error” in interpreting regional provisions which were “obscure and badly phrased” and were at variance with the national legislation. The Court of Cassation also took account of the conduct of the administrative authorities, in particular the fact that, on obtaining planning permission, the applicants had received reassurance from the director of the relevant municipal agency, that the prohibition for conservation purposes which the building schemes infringed had not been mentioned in the area development plan and that the relevant national authorities had not intervened. The Court of Cassation nevertheless ordered the confiscation of all the buildings and land, a measure which it said was mandatory in cases of illegal development, even when the builders had not been convicted of a criminal offence.
Following the judgment, ownership of the land in question was transferred to the municipal authorities, which proceeded to occupy the land and buildings. The buildings already constructed or under construction covered an area of 7,000 square metres, while the remaining confiscated land accounted for 50,000 square metres. Three buildings were demolished.
Article 7 applicable (preliminary objection dismissed): The applicant companies or their representatives had been acquitted, as no mental element in the offence had been established. The confiscation nevertheless amounted to a “penalty”, as it was linked to a “criminal offence” based on general legal provisions. Furthermore, the criminal court had found the building schemes to be actually illegal, the confiscation had been ordered on objective grounds, without it being necessary or possible to establish intent or negligence on the part of the applicants, and the penalty had been chiefly intended to prevent further breaches of the law rather than to secure pecuniary compensation for damage (85% of the confiscated land had not been built on, hence there had been no real encroachment on the countryside). The severity of the penalty was also a factor – under the applicable legislation, it covered all the land included in the building scheme (50,000 square metres in practice) – as was the fact that the 2001 Building Code identified such confiscation as one of the applicable criminal penalties. Admissible.
Admissible under Article 1 of Protocol No. 1.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy